WASHINGTON — The Supreme Court said Monday it will hear an anti-abortion group’s free-speech challenge to a California law that requires “crisis pregnancy centers” to notify patients that the state offers subsidies for contraception and abortion.
The challengers say the disclosure law violates the First Amendment because it forces faith-based pregnancy centers to send a message that conflicts with their aim of encouraging childbirth, not abortion.
It will be the second major case this term in which a conservative, religious-rights plaintiff is challenging a liberal state law on free-speech grounds — and both came from the same lawyers. The Arizona-based Alliance Defending Freedom sued on behalf of a Colorado baker who refused to make a wedding cake for a same-sex couple and was charged with violating the state’s civil rights law. The justices are due to hear his appeal on Dec. 5.
ADF lawyers also challenged the California disclosure law on behalf of the National Institute of Family and Life Advocates, which describes itself as “a faith-based, Christian ministry that seeks to glorify God by proclaiming the sanctity of human life, both born and unborn.” The group represents 110 pregnancy centers in California, and it contends the disclosure provisions amount to unconstitutional “compelled speech.
The key issue, said Michael Farris, ADF’s president, is whether “California can put its thumb on one side” of the scale and require a faith-based center “to promote a pro-abortion message.”
The case presents a clash between the state’s power to regulate the medical profession and the Constitution’s protection for the freedom of speech. Historically, states have had broad authority to regulate physicians and medical providers to protect patients from fraud and substandard care. But in recent years, doctors have sued and won claims that state lawmakers were wrongly interfering with the doctor-patient relationship.
California lawmakers passed the disclosure law two years ago after concluding that as many as 200 pregnancy centers in the state sometimes used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women” about their options for medical care.
The law, known as the Reproductive FACT Act, says these centers must disclose whether they have a medical license and have medical professionals available. They must also post a notice in the waiting room that says “California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, pre-natal care and abortion.” The notice includes a phone number for a county social services office.
Several centers sued to block the disclosure rule, but lost before three federal district judges. Last year, the 9th Circuit Court upheld the law in a 3-0 decision. Judge Dorothy Nelson said the disclosure provision does not “encourage, suggest or imply” that a woman should seek an abortion. It is “closely drawn to achieve California’s interest in safeguarding public health and fully informing Californians of the existence of publicly funded medical services,” she said.
The court’s decision to hear the case may reflect the impact of new Justice Neil M. Gorsuch. He had shown a strong interest in religious liberty claims as an appeals court judge. A few weeks after he arrived, the high court announced it would hear the case of the Colorado baker. It takes the votes of four justices to hear an appeal, and five to have a majority.